Cafrine v R ((SCA CR 14/24) [2024] SCCA (18 December 2024) (Arising in [2023] CR 42/2023)) [2024] SCCA 29 (18 December 2024)

 

IN THE COURT OF APPEAL OF SEYCHELLES

 

Reportable

[2024] SCCA

(18 December 2024)

SCA CR 14/2024

(Arising in [2023]

CR 42/2023

 

CARLOS CAFRINE

(in forma pauperis rep. by Joel Camille) Appellant

 

And

 

THE REPUBLIC Respondent

(rep. by Lansinglu Rongmei and Ria Alcindor)

 

Neutral Citation Cafrine v R (SCA CR 14/24) [2024] SCCA (18 December 2024)

(Arising in [2023] CR 42/2023)

Before: Fernando President, Twomey-Woods, JA, André JA

Summary: murder, non-conformity with The Seychelles Court of Appeal Rules - homemade grounds - lengthy summing up - opinion of trial judge when summing up – omission to provide assistance

Heard: 2 December 2024

Delivered: 18 December 2024

ORDER

The appeal is dismissed. The conviction and sentence of life imprisonment for murder are affirmed.

 

JUDGMENT

DR. M. TWOMEY-WOODS JA

(Fernando President and André JA concurring)

Introduction

1. The brutal murder of a human being is profoundly shocking, but when that violence is inflicted upon a child, it shakes us to our core. The case before us involves the unthinkable: a three-year-old girl subjected to physical, emotional, and sexual violence in her own home — a place that should have been her sanctuary. The evidence adduced, including two videos of the child's final agonising moments, is deeply disturbing and will undoubtedly haunt all who witness it. I have to admit I have not been able to sleep without thinking of that child.

2. In the face of such a heinous crime, there is a natural inclination to overlook potential errors in the judicial process. It is trite that the emotional weight of disturbing evidence can affect both jurors and judges alike.¹ However, our responsibility as judges demands that we maintain objectivity, even in the most challenging cases.

3. Emotional detachment is a cornerstone of judicial decision-making.² We are trained to distance ourselves, to repress our feelings, and to isolate our emotions from our thoughts. This approach aims to ensure predictability and fairness in court proceedings.

4. This is where emotional intelligence in judicial decision-making becomes crucial.³ In cases of such gravity, a balance must be struck. We must acknowledge the emotional impact while not allowing it to cloud our judgment. By embracing this approach, we can maintain self-awareness, enable coherent thinking, and make sound decisions even in the most challenging appeals.

5. In this regard, as I proceed with this appeal, I must navigate the delicate balance between our human response to this tragedy and our professional duty to uphold the law. My goal is to ensure justice is served, both for the victim and for the integrity of our legal system.

The charge

6. The appellant, Carlos Cafrine, a security guard by profession, was charged as follows:

 

 

 

Statement of Offence

Murder, contrary to section 193 of the Penal Code and punishable under section 194 of the Penal Code.

Particulars of Offence

Carlos Cafrine, aged 25 years, resident of La Gogue, Mahé, on the 16th day of May 2023, at his residence at La Gogue, Mahé, murdered his step-daughter, namely Angélique Ahsantina Créa, aged 3 years of La Gogue, Mahé.

 

The prosecution evidence at trial

 

7. Much evidence was adduced in this case but I only rehearse the most salient of those relevant to the issues raised on appeal. The prosecution adduced undisputed evidence that the victim’s mother, Aneesa Sophola, was 14 when she gave birth to the victim, Angélique. In December 2022, she moved in with Carlos Cafrine when the victim was 2 years old. Together with another child they had together, one-year-old Jaiden Cafrine, they lived in a two bedroomed house at La Gogue. Mr. Cafrine’s work shifts were from 6 pm to 6 am each day while Ms. Sophola worked from 7 am to 4 pm. He looked after the children during the day while she worked. At the time Angélique died, the only other occupants of the house were Mr. Cafrine and baby Jaiden. It is also not disputed that Mr. Cafrine was a heroin addict on methadone treatment, which he received every morning on his way home from work.

 

8. Angélique had been hospitalised on 2 March 2023 with vomiting after sustaining injuries to her head and body with a heavy metal object. The paediatric surgeon, Dr. Marvin Fanny, who attended to her, found bruises around her left eye and bleeding in her eye. Mr. Cafrine said she had injured herself with an iron. Dr. Fanny questioned Ms. Sophola, who admitted that there were unexplained bruises on Angélique whenever she returned home from work. She was later to repeat this statement in her testimony in court but additionally remarked that she initially thought this was caused by witchcraft - the marks on the child’s body being caused by the clothes of a deceased grandfather being buried near the victim's room. Dr. Fanny also observed multiple old fingernail marks all over the child’s abdomen. He was sufficiently concerned to call the Child Protection Service.

 

9. Social worker Corinne Micock and Corporal Hoareau visited the hospital and confirmed Dr. Fanny's findings in relation to the old marks on the child. They suspected that Mr. Cafrine had caused the injuries to the child as he had been the only one in the family home when she suffered the injuries. They asked Ms. Sophola to place the child with her maternal grandmother for her safety. With regard to this placement, a home visit was effected at the grandmother’s house in Perseverance, where two louvre blades were found to be missing from a window. The grandmother was asked to repair the window before the child could move in. Sadly, there was no follow-up on this issue, and the child never moved in. In any case, on 20 March, Mr. Cafrine voluntarily signed a written caution at the Central Police Station for child neglect.

 

10. In terms of other illnesses and injuries suffered by the victim before her death, Dr. Barun Kumar Saha testified that she had been previously hospitalised in December 2022 with acute gastritis. She was seen again in English River Health Centre on 13 May 2023, this time with another injury to her left eye; the explanation from Mr. Cafrine was that one-year-old Jaiden had injured the victim with a plastic toy rake. I pause to note that it is deplorable that this injury was not reported to the Child Protection Service given Angélique’s previous hospitalisation and the criminal caution in place. It may have saved her life.

 

11. On 16 May at around 1.10 pm, Mr. Cafrine burst into English River Health Centre with an unresponsive Angélique in his arms. After attempts to resuscitate her failed, her death was pronounced at 1.45 pm.

 

12. The post-mortem report by Dr. Lander Betancourt and his testimony are to the effect that Angélique had died as a result of violence. The direct cause of her death was multiple traumas, specifically trauma or compression in the abdominal cavity, which caused tears of the peritoneum with rupture of blood vessels accumulating blood in the peritoneal cavity, which in turn caused a hypovolemic shock.

 

13. Dr. Betancourt’s testimony and cross-examination was lengthy. He gave distressing details of 26 different acts of violence on the child’s body. These include injury to both her eyes, injury to her vulva by the manipulation of an object (most likely a finger) and an abnormally dilated anus with abrasions which he testified could have been caused by the manipulation of the same object, which had caused the abrasions on the vulva. Dr. Betancourt also testified to multiple lesions reminiscent of love bites or hickeys in her genitals, left thigh, right thigh, left arm, left buttock, and back. He further testified to various fingernail marks on Angelique’s body and multiple marks of bruising and evidence of strangulation.

 

14. The internal examination of her body revealed bleeding in various parts of the brain, neck and pelvic cavity – there was over a litre of “free blood” in her abdomen. He was of the view that Angélique was “the victim of a sexual assault and that the perpetrator had among his purposes to satisfy his sexual desire”.

 

15. Dr. Betancourt concluded that some of the injuries were caused only 24 hours before her death; other injuries were from two to three days before her death and those that caused her death, some 1-2 hours before her death. He also noted that the child was underweight, not sufficiently nourished and that she had been the victim of physical, sexual and psychological abuse.

 

16. Forensic examination of objects from the victim's home revealed that her feeding bottle contained methadone and cocaine. At the same time, her bedsheet was stained with her blood and semen from an unidentified male, with DNA analysis failing to identify the semen's source.

 

17. Two videos were downloaded from Mr. Cafrine’s phone which were taken on the day of Angelique’s death and show her writhing and rolling around on the sofa and then the floor in distress, moaning and groaning.

 

Mr. Cafrine’s defence at trial

 

18. Mr. Cafrine testified in his own defence. He stated that the first injury to Angélique’s head and eye was self-inflicted by a clothes iron she was playing with. As for the second injury to her eye, he testified that it was one year-old Jayden, who had caused it with his plastic toy rake. It was also his defence that the victim’s mother, Ms. Sophola, had solely caused the multiple injuries seen on the victim.

 

19. In his closing statement, Mr. Cafrine’s Counsel, Mr. Joel Camille, submitted that Dr. Betancourt's testimony contained inconsistencies that raised doubts about Mr. Cafrine’s guilt. He highlighted several key issues: the pathologist initially claimed to have reviewed the victim's medical history but later admitted he had not seen the 'Medical in Confidence Report' dated March 11, 2023. Additionally, Dr. Betancourt failed to adequately explain why he did not mention an injury to the victim's labia during his examination. Mr. Camille contended that the court could not definitively determine whether the marks described as love bites could have resulted from compression or from the victim scratching herself. Finally, he pointed out that Dr. Betancourt was unable to accurately pinpoint when the injuries leading to the victim's death occurred, which did not rule out the fact that the mother could have caused them the night before the death.

 

The summing up

 

20. On Thursday, 8 August 2024, after a trial lasting twenty-two days, the learned trial judge began his summing up at 9.30 am. This continued through the night, with the jury instructed the next day, Friday, 9 August 2024, at 8.41 am, to retire for their deliberations and to reach a unanimous decision. The timeline for those long hours of the summation, a point of contention in terms of the lengthiness of the summation and its effect on the jury, is set out below:

Thursday, 8th August 2024

9:30 AM: Trial judge begins the summing up

10:40 AM: Proceedings are stood down.

11:11 AM: Judge resumes with the summation of the prosecution's case.

12.09 PM: Lunch break

1.20 PM: Summing up resumes

2.06 PM: Break

2.12 PM: Proceedings resume

3.03 PM: Toilet break

3.06 PM: Proceedings resume

3.39 PM: Tea break

4.17 PM: Proceedings resume

5.40 PM: Toilet break

5.44 PM: Proceedings resume

7.52 PM: Toilet break

7.57 PM: Proceedings resume

8.14 PM: Dinner break

9.29 PM: Proceedings resume

11.01 PM: Break

11.33 PM: Proceedings resume

Friday, 9th August 2024

1:06 AM: Court adjourns for a five-minute toilet break

1:11 AM: Proceedings resume

3:09 AM: Court adjourns for another five-minute toilet break

3:14 AM: Proceedings resume

4.32 AM: Break

4.54 AM: Proceedings resume

5.39 AM: Toilet break

5.44 AM: Proceedings resume

6.34 AM: Break

6.59 AM: Proceedings resume

8.06 AM: Toilet break

8.09 AM: Proceedings resume

8:41 AM (Friday 9th August 2024 ): The summation concludes and the trial judge instructs the jury to deliberate and attempt to reach a unanimous decision.

11:12 AM: Jury returns with a 5-3 guilty verdict.

11:12 AM–11:36 AM: Judge advises the jury to reconsider their decision and try and reach unanimity

11:36 AM: Jury returns with the same 5-3 guilty verdict.

21. As indicated above, at 11:36 am, the jury reached a final majority verdict, finding the defendant guilty with a vote of 5 to 3. The learned trial judge thereafter convicted Mr. Cafrine on the charge of murder and sentenced him to life imprisonment.

 

22. Dissatisfied by the conviction and sentence, Mr. Cafrine has appealed to this court.

 

Procedural irregularities in the notice and grounds of appeal

 

23. A notice of appeal was filed personally by Mr. Cafrine on 21 August 2024. It reads:

“Take notice that I, Carlos Cafrine, hereby appeal to the Court of Appeal against the decision of Judge R. Govinden in case number C42/23, given at the Supreme Court on 9 Aug.24.

 

Whereby I was convicted of the offence of Murder. The sentence was life imprisonment.

This appeal is against both sentence and conviction on the grounds that it is too harsh” (Verbatim).

 

24. Rule 18 of the Seychelles Court of Appeal rules prescribes a period of thirty days from the date of the decision appealed for filing a notice of appeal. Once a notice of appeal is filed, the appellant has one month to submit their main heads of argument. This period starts from the date they are served with the record of appeal, as stipulated in Rule 24(1)(a) of the Rules.

 

25. Mr. Cafrine’s notice of appeal was filed on time. Rule 18 (3) provides that:

 

“(3) Every notice of appeal shall set forth the grounds of appeal in separate numbered paragraphs, the findings of fact and conclusions of law to which the appellant is objecting and shall also state the particular respect in which the variation of the judgment or order is sought.

 

26. However, in breach of the said rule, the notice of appeal filed was against conviction and sentence, but the only ground stated was that the conviction and sentence “was too harsh”.

 

27. Notwithstanding, the matter was mentioned in this Court on 3 September 2024, in which learned Counsel, Mr. Joel Camille appeared representing Mr. Cafrine. He indicated that he was proceeding with the appeal. The Court reminded him that once he received the record of appeal, he would have one month to file his written submissions.

 

28. The record of appeal was served on him on 19 September 2024, but it was not until 24 October 2024 that Mr. Camille filed a fresh notice of appeal and new grounds of appeal. Although this new notice of appeal was filed two and a half months after the conviction was entered, there was no motion or supporting affidavit filed requesting the substitution of the notice of appeal and the new grounds nor one for the condonation of the delay in filing the same in compliance with Rule 26. Subsequently, Mr. Camille filed skeleton heads of argument on 8 November 2024, nearly two months out of time again in breach of Rule 24(1)(a).

 

29. On November 30th, two days before the appeal was to be heard, Counsel filed a motion with a supporting affidavit sworn by Mr. Cafrine to justify the delay, averring that the tardiness was due to Counsel being occupied with other cases in the Supreme Court. I am not of the view that this is a valid reason to excuse the delay. In any case, Mr. Cafrine has no personal knowledge of Counsel being occupied in other courts and is not in a position to swear an affidavit to this fact. As a result, the Court rejected the motion, and Counsel was refused audience before the Court. I will address the conduct of Counsel later in this judgment.

30. The case of Labiche & Anor v R⁴ is directly relevant to the procedural irregularities in this appeal, and I wish to reiterate the comments I made in that case. I recognise that Mr. Cafrine was represented by his Counsel, Mr. Camille, under the Legal Aid Act and was not responsible for Counsel's shortcomings. He is entitled to a fair hearing as guaranteed by the Constitution. However, I am also mindful of the need for effective criminal defence and the efficient administration of justice within the courts of Seychelles. This court cannot and will not condone breaches of the Court of Appeal Rules.

31. However, the Court must also remember its responsibilities to accused individuals during trial. I can only restate what this Court previously expressed in Bacco v R:⁵

“Judges have an onerous duty to perform as custodians of the Constitution and the rule of law. As the Court, which is mandated to speak the last word in ligation in this country, that duty obviously falls more heavily on this Court than any other court. It is in this sense that this Court [upholds] the accused’s Constitutional right to a fair trial in as much as the Constitution is the supreme law in this country.”⁶

 

The appeal

 

32. Considering all these factors, I carefully reviewed the appeal record, the evidence presented, the closing legal arguments made during the trial, and the instructions given by the trial judge to the jury. I also considered the homemade grounds of Mr. Cafrine and additionally, those raised by his Counsel in written submissions. My goal was to determine whether any miscarriage of justice occurred or if there were any factual or legal errors that might render the conviction unsafe.

 

33. One of the main issues in this appeal is the length of the summing-up. Mr. Cafrine contends that this prolonged summation may have deprived the jury of the opportunity to adequately absorb crucial and detailed instructions, thereby rendering the verdict and subsequent conviction unsafe.

Judicial Duty in Summing Up
 

34. I first address what is required in a summation: The trial judge is obligated to aid the jury in their deliberations by offering a comprehensive overview of the evidence and issues for determination by the jury, which should be distinct from the arguments made in closing speeches. However, it is inappropriate for the judge to comment on the evidence in a way that suggests bias or to manipulate the presentation of evidence to steer the outcome of the trial. The English case of Amado-Taylor⁷ is frequently referenced and outlines the responsibilities of judges when summarising a case for the jury. The Court of Appeal emphasised that, except in very brief and straightforward cases, it is considered a procedural irregularity for a judge to fail to provide a summary of the facts. The Court offered the following guidance:

“…[C]ounsel's closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial. And the first step to such a trial is for the judge to focus the jury's attention on the issues he identifies. That responsibility should not be delegated (or more accurately here, abandoned) to counsel, doubly so when they do not know, when making their speeches, what the judge is expecting of them.”⁸

 

35. The Court also added:

“[t]he suggestion that what good judicial practice requires of a judge is to “...

embark ... upon a sort of safety net exercise to ensure that you've been reminded

of every single salient point in the case” is neither an accurate nor a fair

description of the judge's task in summing up.”⁹

 

36. So, how long should the summation be? Should it be extensive or focussed? Judges have the discretion to determine how the summation is created and its final form. They may adopt different styles in their approaches. What is the best format?

37. A judge's task in summarising evidence is inherently challenging. They must navigate the fine line between ensuring they review the relevant law and evidential facts without over-rehearsing the entirety of the trial.

38. In R v Landy,¹⁰ the judge gave a summing up, which lasted for six days. On allowing the appeal the Court of Appeal stated:

“A summing-up should be clear, concise and intelligible (…) This summing up suffered from the fact that the judge was over conscientious, he seems to have decided that the jury should be reminded of nearly all the details of the evidence and directed as to every facet of the law which applied. ‘He must have spent hours preparing his summing-up but in the end he got lost in the trees and missed the wood’.”

 

39. However, in the Irish case of DPP v Hickey¹¹ where the summing up lasted six days, it was held that:

“[T]he charge while overlong was not such as would confuse the jury either as to the law, the evidence or the inferences to be drawn from the evidence.”

 

40. It would seem that an excessively lengthy summation cannot of its own be a valid reason for the success of an appeal if the summation’s content is legally and factually correct. In this regard, in Amado-Taylor, the court added:

“[G]enerally speaking, the longer a trial lasts, the greater will be a jury's need for assistance from the judge relating to the evidence. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and to cross reference evidence from different sources which relates to the same issue. Accordingly, in a trial lasting several days or more, it is generally of assistance to the jury if the judge summarises those factual issues which are not disputed, and, where there is a significant dispute as to material facts, identifies succinctly those pieces of evidence which are in conflict. By so doing, the judge can focus the jury's attention on those factual issues which they must resolve. It is never appropriate, however, for a summing-up to be a mere rehearsal of the evidence."

 

41. In the present case, and considering the authorities cited, the trial judge had a responsibility to present each party's case clearly and fairly to the jury. This duty included not only identifying the key issues in each side's arguments but also, given the length of the trial, providing the jury with an adequate summary of the evidence to enable them to understand the narrative presented by both parties.

42. A failure to do so would have amounted to a miscarriage of justice. There was a mass of evidence adduced during this long trial and the trial judge carried out a comprehensive review of the significant items. The summation, which extended to 187 pages, was perhaps too lengthy and could have been condensed more effectively. The risk in such lengthy summing-ups is articulated by Lawton LJ in the case of Charles¹²:

“The method of summing up in this kind of case, particularly the reading out of the judge’s note of all the evidence is, in our judgment, unsatisfactory. It is unsatisfactory for a number of reasons. In plain language, it must bore the jury to sleep…”

 

43. Therefore, although it is well established that a trial judge must review the evidence at the conclusion of a criminal trial to assist the jury, a comprehensive recounting of all the details is unnecessary; the jury does not require reminders of every element of the law. Clarity and conciseness should be prioritised over lengthy explanations. It is sufficient to highlight the key parts of the evidence that significantly impact the case, rather than rehearsing the examination in chief, cross-examination, re-examination, and jury questions for every witness.. This presents an opportunity for our Supreme Court to consider creating a Bench Book with clear guidelines for summations and sample directions.

44. Notwithstanding, in the present appeal, it cannot be claimed that the jury did not receive an accurate overview of the case, which included testimony from 23 prosecution witnesses and 3 defence witnesses, as well as the presentation of 74 prosecution exhibits and 6 defence exhibits.

45. Further, this Court has acknowledged the complexities inherent in the task of the trial judge when summing up in Jean-Charles and Parekh v The Republic¹³ in which Fernando PCA cited the Jamaican case of Mears (Byfield) v R,¹⁴ to the effect that a judge’s task in a jury trial is never an easy one, for it is all too easy to criticise a judge who has felt that he has to supplement deficiencies in the performance of the prosecution or defence, to maintain a proper balance between the two sides in the adversarial proceedings.

46. As stated by the Privy Council in Mears, the summing-up must be taken as a whole and the question that needs to be asked in the words of Lord Sumner in Ibrahim v R¹⁵ is whether there was:

“Something which…deprives the accused of the substance of a fair trial and the protection of the law, or which in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.”

 

47. In Mears, the Privy Council allowed the appeal as it was not a proper case to find that a jury, properly directed, would have come to the same conclusion.

48. In the present case, the fact that the summing up was so lengthy, of its own, was not sufficient grounds to affect the outcome of Mr. Cafrine’s trial. Therefore, I am satisfied that the lengthy summing up was not a breach of Mr. Cafrine’s fair trial rights.

The right to “a well-rested jury” as a fair trial right

 

49. I now turn to the question of whether the protracted summing-up might have deprived the jury of the opportunity to adequately absorb crucial and detailed instructions, thereby rendering the verdict and subsequent conviction unsafe.

50. Having established that, in a trial lasting several days or more, it is generally beneficial for the jury if the judge summarises undisputed factual issues and succinctly identifies conflicting evidence on significant disputes - thus focusing the jury's attention on the key issues they must resolve - it is essential to assess whether the continuous 23-hour summing-up, interrupted by fifteen breaks some lasting over an hour and some five minutes as indicated in the timeline at paragraph 20 above, hindered the jury's ability to maintain attention and effectively comprehend and analyse the case and the summation.

51. Criminal proceedings are conducted in a manner that is largely unfamiliar to most members of the public. Evidence is presented in accordance with technical rules, such as the prohibition against hearsay, as well as other principles that may pose challenges for the average juror to comprehend. Furthermore, attorneys, in presenting their cases, often utilise legal terminology that can further confuse the jury. In this context, the role of the trial judge in guiding the jury through the complexities of the courtroom and elucidating intricate legal principles into comprehensible concepts is of paramount importance.

52. However, jurors must remain attentive and engaged in their role as fact-finders. It is generally accepted that the jury's attention and physical and emotional stamina are critical for their apprehension of the trial, summing-up, and deliberations. Studies show that sleep deprivation affects deliberations.¹⁶ Sleep deprivation can hinder their ability to follow the judge's instructions, understand the evidence, and deliberate fairly, as fatigue impairs focus and comprehension of nuanced legal concepts. Therefore, a well-rested jury is crucial for ensuring that justice is both achieved and perceived.

53. A conviction entered by a sleep-deprived jury with an impaired ability to make judgments could violate a defendant’s right to a fair trial.

54. The overarching principle remains that a trial must be fair. To preserve the integrity of the adversarial process, the right to a fair trial must encompass the right to have reasonably alert and attentive participants throughout the proceedings, including both the trial and the deliberations. Without this assurance, the fair exercise of the other rights afforded to a defendant cannot be guaranteed.

Comparative Jurisprudence on Jury Fatigue in Common Law Countries with Juries

The U.S.

 

55. In the United States Court of Appeals, Second Circuit case of DeGrandis v Fay,¹⁷ the court addressed the issue of jury fatigue in a case involving a lengthy three-and-a-half-month trial, during which the jury heard from 125 witnesses and reviewed 100 exhibits. After closing arguments, jurors expressed fatigue and requested rest, but the judge instructed them to continue deliberating. Despite receiving food and coffee at late hours, the jurors reported an impasse and requested sleep. Ultimately, they chose to continue deliberating rather than accept substandard motel accommodation. After a brief rest and breakfast, they returned with mixed verdicts on the different charges some 28 hours after deliberation began.

56. On appeal, the petitioners argued that the prolonged deliberation was coercive. The court acknowledged the concern of fatigue but upheld the lower court's ruling, noting that jurors opted to continue despite being offered rest, suggesting they had regained focus. The varied verdicts on the different charges indicated careful consideration rather than decisions made out of desperation. Chief Judge Desmond dissented, arguing that keeping the jury in deliberation for over 24 hours without sufficient rest constituted coercion as a matter of law.

57. Similarly, in the case of Gueldner v Heyd ,¹⁸ the court emphasised the trial judge’s broad discretion in managing trial proceedings and held that jurors are presumed to fulfil their duties conscientiously unless clear evidence demonstrates otherwise. Citing DeGrandis v Fay the court noted:

“Had fatigue so affected their respective judgments as to have prevented them from properly exercising their functions as jurors, they could have so advised the court.”

 

58. The court reasoned that jurors, despite late hours, are capable of continuing their duties effectively. It left the decision to the trial judge’s discretion. It also found no evidence that the late hours caused prejudice or coerced their verdict. The court concluded that the petitioners were not denied due process, as there was no demonstrable prejudice resulting from the late hours of the trial erred in not adjourning at midnight when counsel stated that they could no longer be effective and that they were not thinking clearly.

59. However, in another US case, State v Parton,¹⁹ Parton appealed his convictions for armed robbery and escape from custody. The trial involved extensive proceedings with co-defendants and numerous motions, culminating in jury deliberations that began around 11:45 pm and concluded with a verdict at 2:15 am the following day. Neither the defence nor the jury objected to the late hours during the trial.

60. On appeal, Parton argued that the late-night proceedings compromised the fairness of his trial due to fatigue among jurors and counsel. The appellate court found that the trial court had committed “a plain error” by allowing the trial to extend into the early morning without sufficient justification. The court emphasised the risks associated with late-night sessions, including diminished effectiveness of counsel, juror alertness, and witness reliability. It criticised the trial judge for prioritising logistical concerns over fairness and noted that late-night trials should only occur under unusual circumstances.

61. Ultimately, the court reversed Parton's convictions, declaring that the extended trial hours violated his constitutional right to due process and effective assistance of counsel. It remanded the case for a new trial, emphasising the need to avoid late-night sessions to ensure all participants can perform their duties effectively and maintain the integrity of the judicial process. Parton had followed the trend set by the cases of United States v Parks,²⁰ Hembree v State²¹ and State v McMullin.²²

62. However, more recent federal cases have determined that lengthy jury deliberations do not automatically violate the right to a fair trial in the absence of additional factors. In Walls v Buss,²³ the court cited several precedents, including US v Mitchell,²⁴ which found that a jury verdict returned at 1:30 a.m. was not the result of judicial coercion since there was no indication that the jury was tired or unable to continue. Similarly, in US v Tubbs,²⁵ the court upheld a jury verdict returned at 4:30 a.m., noting that nothing in the record suggested the verdict was influenced by juror exhaustion or fatigue. Additionally, in US v Caracci,²⁶ the court stated that the duration of jury deliberation falls within the discretion of the trial court and, without more, cannot be deemed coercive.

England

63. The authors in Archbold²⁷ state that:

“The Court of Appeal has discouraged starting a summing up or starting a particularly important part thereof (e.g. the defence case) at a late hour or late on a Friday. The more serious and complex the case, the greater the need to ensure that the directions to the jury are given when they are likely to be fresh and attentive…”

 

64. In R v Rimmer and Beech,²⁸ a murder trial commenced with the judge's summing up at 4:15 pm after closing speeches, during which he provided complex legal directions. The following day, the jury's questions indicated they did not understand these directions, prompting the judge to clarify. Although the appeal upheld the convictions, the court noted it was an error to start the summing up so late.

65. In R v Day,²⁹ the judge concluded the defence summation at 3:00 pm on a Friday after a lengthy trial. The court suggested that this part should have been postponed until Monday for clarity.

66. In Regina v GP,³⁰ the appeal concerned whether jurors felt pressured to reach a verdict amid the COVID-19 crisis. The trial lasted five days, and the jury deliberated for 4 hours and 20 minutes before returning mixed verdicts. The Court of Appeal found no signs of juror fatigue or pressure, emphasising that the jury was assured they could take their time. Concerns about juror disengagement raised by defence counsel were not presented during the trial, weakening their appeal. Minor errors in the judge's summation were promptly corrected and did not indicate undue pressure. The court confirmed the jurors acted diligently, dismissed claims of external pressure, and refused leave to appeal, deeming the convictions safe.

67. The Court of Appeal noted no indication that jurors were fatigued or pressured. The jury was granted sufficient time to deliberate, and their mixed verdicts (convicting on five counts and acquitting on one) demonstrated thoughtful consideration of the evidence. The judge explicitly reassured the jury that they faced no time pressure and could take all the time needed for their deliberations.

68. The court emphasised that the jurors performed their duties conscientiously and dismissed the argument that the nearby discharge of a separate jury or the general pandemic context pressured the jury. The convictions were deemed safe and leave to appeal was refused.

Australia

69. In Stevens v The Queen,³¹ the court was at pains to point out that:

“A summing-up in a murder trial is not meant to take the form of an essay on the law of homicide, with points given for comprehensiveness. Juries decide issues of fact, not law. The task of the trial judge is to formulate for the decision of the jury the issues of fact which they need to resolve in order to return a verdict.”

 

70. In Domican v The Queen,³² the High Court of Australia in an appeal from a murder conviction, on the grounds that the trial judge’s directions fell short of the required standard, the court observed that:

“Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence; R v Matthews and Ford (1972). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence R v Davies and Cody (No.2) (1937); R v Melville (1956). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.”³³

 

71. On the specific issue of jury fatigue, in JJS v The State Of Western Australia³⁴ in which the appellant had submitted that the verdict was unsafe because the jury had been engaged from 9 am to 10.15 pm and that “there was a real danger that tiredness would have overcome at least some of the jury” the court in their unanimous decision to dismiss the appeal stated:

“There might be some limit to the length of time for which a jury should be allowed to deliberate. However, in the absence of evidence to the contrary, it can be safely assumed that a jury is capable of assessing its own capacities. There is no evidence that in this case the jury or any member of the jury was exhausted, or that there was any disagreement between jury members as to the manner in which deliberations should proceed. In the absence of evidence, it can be reasonably inferred that the jury would have responded appropriately to an assertion by one or more members of the jury to the effect that they were exhausted to the point where they did not consider they were capable of adequately discharging their important responsibility.”³⁵

 

Legal Issues arising from the prolonged summing in the present appeal

 

72. In the present appeal, Mr. Cafrine faults the trial judge for prolonging his summing-up to the jury without considering an adjournment and for not allowing the jury to rest and return on a fresh day for their deliberations so that they could better absorb the important and detailed directions.

73. In this regard, the two pertinent questions that need answering are, first, whether the trial judge should have adjourned the summing up to ensure fairness and jury comprehension, and second, whether the judge balanced trial expediency with ensuring a fair trial.

74. The trial started on 2 July 2024 and lasted until 8 August 2024, spanning 28 working days, excluding weekends. In paragraph [20] above, I have set out the timeline of the summing up and the subsequent verdict. In summary, the summing up by the trial judge began at 9:30 am on Thursday, 8th August 2024, and concluded at 8:41 am on Friday, 9th August 2024, spanning nearly 24 hours. I have already indicated the numerous breaks for comfort, tea, coffee, breakfast, lunch and dinner during those hours. No one asked for the summation to be adjourned or for the jury to be sequestered in a hotel and for the summation to resume after they had slept. No one complained. No one said they were too tired to continue.

75. At 11:12 am, nearly two and a half hours after they had retired, the jury returned with a 5-3 guilty verdict. The judge instructed them to reconsider and by 11:36 am, the jury returned with the same verdict. The total time the jury spent deliberating was under three hours.

76. With regard to the first question to be answered, section 267(4) of the Criminal Procedure Code instructs the trial judge to:

“Whenever it is practicable to do so, [to] begin the summing up at such a time as will enable him to complete it and to leave a reasonable period on the same day for the jury to consider their verdict without an adjournment involving their separation.”

 

77. The purpose of the provision is to ensure summing-up and jury deliberations on the same day to avoid juror separation, allowing for flexibility based on practicality and circumstances. Judges are encouraged to start summing up early enough to permit meaningful deliberation; in the present case, the judge began at 9:30 am, which is in my view appropriate. The law implies that jury deliberations should not be rushed, and if summing-up concludes too late, it becomes impractical to expect same-day deliberations.

78. The phrase “whenever it is practicable” acknowledges that factors like complex cases or unexpected delays may necessitate a departure from same-day completion without compromising fairness. In the context of Seychelles, the close-knit nature of society heightens the risk of jurors being influenced by their community, justifying late-night sessions to minimise external pressures. The decision to continue late into the night is viewed as a pragmatic response to local realities rather than a failure of judicial prudence.

79. Given the small population and social connections in Seychelles, there's a heightened need for juror insulation from their community to preserve the integrity of the trial process. Without evidence of juror fatigue or pressure, the length of the summing-up and deliberation does not inherently suggest coercion; a protracted process does not imply juror compromise unless clear evidence of undue pressure exists. There is no record that the trial judge observed any juror difficulties, and no concerns were raised during the trial, indicating that the process was managed appropriately.

80. Appellate judgments are often written from a remote perspective, which can overlook the realities of trial proceedings. This Court appreciates that it is judging from a distance and not well-equipped to appreciate the effect of the lengthy proceedings on the jurors, or what information should be conveyed to lay persons to help them in their duties.

81. Ultimately, although I have difficulty with accepting the length of time that the summing up took, I find no evidence of coercion or jury fatigue. The integrity of the verdict remains intact.

82. I must also add that Counsel has a duty to address any significant issues in the judge’s summing-up at the time they occur, rather than defer the issue for later argument in this Court. The case of Ilhan Sakin & Another³⁶ has been cited for the proposition that even if Counsel did not point out the judge's omission during the summation, it does not diminish the reality that there was a fundamental failure in the judicial process. That case can easily be distinguished as I cannot agree that there was a material error in the present case.

83. I maintain, however, that it is Counsel’s duty to call out any patent defects in the trial process at the time it occurs. I can only repeat what the High Court of Justice in Northern Ireland stated in the recent case of The King v Joseph Dorrian:³⁷

“Criminal law practitioners should remember that they have an obligation, not just to their client but to the court. If they consider that there is a serious error in law, it should be properly raised in court with legal authority for the trial judge to consider rather than resurrected at an appeal before the Court of Appeal which is obviously at a remove from the immediacy of a trial. This should be the established practice going forward.”³⁸

 

84. Additionally, the fact that the jury was split in their verdict (5-3)³⁹ clearly indicates that they were alert and engaged in meaningful discussion about the decision. This division reflects their careful consideration of the case and differing perspectives, demonstrating their active participation in the deliberation process.

85. In conclusion, unless there is evidence to show that the jury was indeed fatigued or communicated such fatigue and was ignored, the mere protraction of the summing up is not a viable ground for allowing the appeal. In the present case, there was no such evidence and this ground is unsustainable.

Usurpation of jury’s role by the trial judge

 

86. Mr. Cafrine also complains that the learned trial judge expressed his own views on the evidence so as to leave the jury with no choice but to convict. The specific comments are those found at pages 1555-6 of the trial record after the learned trial judge acknowledged that Ms. Sophola might herself have been neglectful in regards to the victim, namely:

“The fact that a person may otherwise have been guilty of other offences on the child not being prosecuted should not absolve other persons who may be guilty if not more guilty of other facts from facing their criminal responsibilities.” (Sic)

 

1. It is submitted that the statement is inappropriate as it directs the jury to convict Mr. Cafrine despite the fact that Ms. Sophola may have contributed to the death of the deceased.

2. With regard to the impact these observations made by the learned trial judge could have had on the jury, I must first of all point out that Ms. Sophola was not on trial. And even if she had been, the learned trial judge correctly directed the jury that if multiple people are charged or not charged with the same crime in the same indictment, this does not mean that one person's case affects another's. Each person is judged separately. As it is, the matter before the court concerned the charge of murder against Mr Cafrine. He was perfectly entitled to raise the defence of “alternative perpetrator” or “alternative suspect” as he did. In this regard, he is permitted to adduce evidence tending to establish someone else as the culprit of the offence for the purpose of raising a reasonable doubt about his own culpability. In the event, the trial judge has a duty to direct the jury to weigh the evidence in light of the accused’s overall claims of reasonable doubt, but not to put the alternative perpetrator on trial.

3. However, with this type of defence, Counsel must produce either "some evidence" or "substantial evidence" linking the alternative perpetrator to the crime. Mr. Cafrine testified that Ms. Sophola had chastised the victim on different occasions, including the night before her death and that her slaps had been loud enough for his grandmother next door to hear them. Counsel put the same to Ms. Sopola in cross-examination. Ms. Sophola conceded that she had, on occasion, disciplined the victim but denied that she ever administered hard slaps to her or that she had hit her the night before her death. The grandmother was never called to give evidence.

4. It is trite that if the defence advances a particular factual proposition, there must be evidence to justify it. In the present matter, there is neither competing medical evidence nor medical evidence that the child had not been well the evening or morning before she collapsed and died. Such a defence needs to show the sufficient provable connection of Ms. Sophola to the offence and cannot simply be speculative.⁴⁰

5. From that perspective, the summing up by the learned trial judge on this issue cannot be faulted.

6. Mr. Cafrine also contended that the trial judge had also made remarks regarding the unlikelihood of the one-year-old infant having inflicted injury on the victim with a plastic toy rake, and remarks regarding the presence of methadone and cocaine in the feeding bottle of the deceased. His argument is that these were directed to the jury to influence them. I note that all these statements by the learned trial judge are factually supported by evidence produced by the prosecution. Therefore, it was not inappropriate for the judge to mention these facts.

7. The evidence concerning what was found in the victim's feeding bottle remains unchanged, regardless of whether she actually consumed it. It is profoundly disturbing to imagine that anyone would deliberately mix cocaine and methadone into sugar water for a child to drink. The trial judge was entirely justified in referring to the lab results that confirmed the presence of these drugs and in discussing the implications of that evidence.

8. Similarly, it was pure common sense to ask what force could possibly have been wielded by a one-year-old infant with a plastic rake to cause a haemorrhage in the victim's eye. That type of evidence from Mr. Cafrine was so nonsensical as to merit comment by the learned trial judge. It did not amount to a misdirection to the jury.

9. Finally, I must address the issue of the judge “expressing his own personal views.” I only have to refer to section 265 (2) of the Criminal Procedure Code to put this in context. It provides:

“The Judge may, whenever he thinks proper in the course of the summing up, express to the jury his own opinion on any question of fact, or of mixed law and fact, relevant to the proceedings.”

 

96. This court has fully explored the meaning of the above provisions and already explained the context and extent of comments by a trial judge in summing ups in the case of Jean-Charles and Parekh v Republic.⁴¹ I do not wish to repeat the same but only add that consistent case law has reiterated the province of the judge in these circumstances:

“Provided [the trial judge] emphasises that the jury are entitled to ignore his opinions, the judge may comment on the evidence in a way which indicates his own views. Convictions have been upheld notwithstanding robust comments to the detriment of the defence case.”⁴²

97. Given the clear jurisprudence on this issue, Mr. Cafrine's contention is misplaced and unfounded in the context of this appeal.

Failure to place Mr. Cafrine’s case before the jury

 

98. It is also contended by Mr. Cafrine that the learned trial judge did not fully and sufficiently place his case to the jury and instead cherry-picked evidence in favour of the prosecution. The instances of this comportment are that the learned trial judge spent more time on the prosecution case than that of Mr. Cafrine, did not summarise the issues of doubt specifically those arising from Dr. Betancourt’s evidence and also did not give a fair summary of Ms. Sophola’s testimony.

99. I have already addressed the issue regarding Ms. Sophola’s evidence. The overwhelming medical evidence is that the victim succumbed to injuries suffered shortly before her death as further explained in paragraph 100 below. This, therefore, takes Ms. Sophola out of the picture altogether as to the person who murdered her.

Dr. Lander Betancourt’s evidence

 

100. With regard to Dr. Betancourt’s testimony and written report, it is contended that he could not give an exact time of when the injuries were inflicted on the victim, which therefore did not rule out that those injuries could have happened the previous night. I do not agree. The report and testimony are clear on this issue and are correctly summarised by the learned trial judge. Dr. Betancourt confirmed that the injury that caused the death of the victim had happened “1-2 hours” or a “short time” before her death. During that time frame, the victim was in the sole care of Mr. Cafrine as she had also been on the two previous occasions when injuries to her had necessitated medical intervention and hospitalisation.

101. Furthermore, the evidence clearly suggests that even if the fatal injuries could have occurred the previous night, the severity of those injuries – evidenced by the significant amount of blood found in the victim's abdomen – would have manifested clear symptoms long before Mr. Cafrine took her to the hospital.

102. Mr. Cafrine has also submitted that Dr. Betancourt's evidence is not credible. He initially confirmed that he had seen the victim’s medical history but later said he had not seen the report of her medical history.

103. What Mr. Cafrine has not stated, as correctly pointed out by Ms. Alcindor, learned State Counsel, is that Dr. Betancourt explained that it is usual for pathologists to see the medical files of a patient kept at Seychelles Hospital or English River Clinic but that he had not seen the particular file prepared by Dr. Marvin Fanny, who had first alerted Social Services to the victim’s plight. I see no inconsistency whatsoever in his testimony and nothing misleading in the summing up by the learned trial judge in that regard.

104. In his efforts to show that the learned trial judge had failed to point out another inconsistency in Dr. Betancourt’s evidence, Mr. Cafrine alleged he had failed to list an abrasion in the left vaginal vestibule of the victim. Again, I can only state that this is another smokescreen created by Counsel for Mr. Cafrine. A careful examination of the evidence shows Dr. Betancourt’s robust denial of such omission. He clarified on numerous occasions that he identified 26 signs of violence on the (external) body of the victim but also recorded numerous other internal injuries including injuries to the inside of her vagina.

Omission in the offence of murder

 

105. Although the issue of an omission amounting to murder was not explicitly raised, it is nevertheless addressed, given the particular acts of this case. In this regard, it must be noted that section 193 of the Penal Code provides:

“Any person who of malice aforethought causes the death of another
person by an unlawful act or omission is guilty of murder.”

 

106. Further, section 196 in relevant part provides:

“Malice aforethought shall be deemed to be established by evidence
proving any one or more of the following circumstances:-
 

…
(b) knowledge that the act or omission causing death will probably cause
the death of or grievous harm to some person, whether such person is the
person actually killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or not, or by
a wish that it may not be caused.” (Emphasis added)

 

107. Additionally, section 199 provides in relevant part:

“A person is deemed to have caused the death of another person although his act is not the immediate or not the sole cause of death in any of the following cases
..
(d) if, by any act or omission, he hastened the death of a person suffering under any disease or injury which, apart from such act or omission, would have caused death…” (Emphasis added)
 

108. Finally, in the context of the present appeal, sections 202-203 provide:

“It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.”

 

It is the duty of every person who, as head of a family, has charge of a child under the age of fourteen years, being a member of his household, to provide the necessaries of life for such child; and he is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty, whether the child is helpless or not.” (Emphasis added).

 

109. It is pellucidly clear from the above provisions that not only an act to kill but also an omission to preserve life is indicative of the knowledge and intent to kill.

110. In Ragain v R,⁴³ Fernando JA, as he then was, explained that in the context of the above provisions, it follows that:

“Thus, there are two main elements of this offence, namely an unlawful act or an unlawful omission and such unlawful act or unlawful omission should have caused the death of another person.”⁴⁴

 

111. In Sopha v R,⁴⁵ Sopha and an accomplice had tied up the victim who, in the struggle, had fallen to the ground and hit his head and was subsequently further struck by a brick on the head by the accomplice. Sopha had testified that prior to leaving the house of the deceased, he had noticed that:

“the deceased was not moving, was panting like someone who is really tired and that he felt that this was a bit strange.”⁴⁶

 

112. Fernando JA, explicitly stated that in this context: :

“Section 193 specifically provides for causing murder by an unlawful act or omission. Further since murder is a result-crime the conduct of the accused that is causative of the result may consist not only of their gagging the deceased and striking his head with a brick or struggling with him which caused the deceased to fall on the floor but the failure of the accused to take measures that lay within their power to counteract the danger that they had created by calling for medical assistance or summoning help.⁴⁷

 

113. Similarly, in Cliff Emmanuel & Anor v R,⁴⁸ where the victim had been tied and gagged with duct tape and had complained that he was suffocating and the appellants had nevertheless left him to die as they escaped with loot from the house, Fernando JA upholding the direction of the learned trial judge on this stated:

“Murder can be committed by an unlawful act or ‘omission’. ‘An unlawful
omission is an omission amounting to culpable negligence to discharge a duty
tending to the preservation of life or health, whether such omission is or is not
accompanied by an intention to cause death or bodily harm.’ An omission
becomes unlawful and resulting in liability when there is a legal duty to act. When
a person has created or contributed to the creation of a state of affairs that he knew
or ought to have known had become life-threatening, there arises a legal duty to
take steps to avert that situation and the failure to take make measures that lie
within his power, to counteract that danger makes him criminally liable.”⁴⁹

 

114. In the present case, tragically, the victim, only three years old, was in desperate need of help. Instead of rushing her to the hospital, Mr. Cafrine stopped to take videos of her last moments, as depicted in the recordings taken at 12:40 and 12:46. This profound neglect underscored specifically by sections 202-203 of the Penal Code, shows his failure to act in the face of such evident distress and constitutes a grave unlawful omission. The learned trial judge correctly directed the judiciary that the intention to murder includes;

“[having] knowledge beside intention that his acts or omissions causing death or [would] probably cause the death or grievous harm [of the victim]…”⁵⁰

 

115. In the circumstances of this case, and given Mr. Cafrine's grave omission, I fail to see any misdirection or a miscarriage of justice.

Overwhelming evidence

 

116. I am mystified by the submission that “the verdict and conviction should be set aside on the ground that it is unreasonable and cannot be supported, having regard to all of the evidence before the trial court [and that] a reasonable jury properly directed could not have arrived as [such a verdict].”

117. What confounds me even more is how a jury, properly instructed as they were, could fail to reach a unanimous decision. The evidence against Mr. Cafrine is damning. Until little Angélique entered his home in December 2022, there had never been a single report of injury against her. His explanations for her injuries are not only implausible but almost absurd. The heart-wrenching videos of her groaning and writhing in pain – on the sofa and the floor – haunts all who witnessed them. The presence of semen and the victim’s blood on her bed undeniably implicates Mr. Cafrine, even if the DNA couldn’t definitively link him to the semen. His status as the only adult male in the house is circumstantial evidence of that fact and adds another disturbing layer to this tragic narrative. The cocaine and methadone in her feeding bottle indicate his callous intent.

118. The horrific injuries to her little body – to her neck, abdomen, private parts, her strangulation, and the amount of blood in her abdomen leave little to the imagination as to how they occurred. There is no doubt in my mind: Mr. Cafrine sexually abused and ultimately killed Angélique Créa.

119. Given the overwhelming evidence, I find no fault in the learned trial judge’s direction to the jury and stand firmly by the conviction.

120. Mr. Cafrine claims that his sentence is “too harsh.” Yet, in my years of courtroom observation, I have never encountered a murder scene as chilling and disturbing as this one. I have examined this case from every angle, and I continually return to the heartbreaking reality that this little girl was deprived of both physical and psychological nourishment, living in constant terror until her tragic end. No one deserves a life sentence more than Carlos Cafrine.

121. This Court is duty bound to address a few remarks regarding the misconduct of Counsel in this appeal, who appeared under legal aid certificate for Mr. Cafrine. Deadlines were missed, and filings were inadequate. These failures do not excuse Mr. Cafrine’s conviction, but they undermine the standards of effective legal representation. He has failed in his duties and has not assisted Mr. Cafrine before this Court. As such, this Court orders that Mr. Camille shall not be paid any legal aid fees for his role in this appeal.

122. Finally, given the nature of this case and the special protection afforded to the children of this nation in terms of article 31(c) of our Constitution, I cannot but make some remarks, if only to prevent such a tragedy from happening again.

 

123. Article 31 (c) in relevant part provides:

“The State recognises the right of children and young persons to special protection in view of their immaturity and vulnerability and to ensure effective exercise of this right the State undertakes—

…

to ensure special protection against … physical and moral dangers to which children and young persons are exposed.”

 

124. Angelique’s mother was just 18 when her daughter was murdered. She was only 14 when she gave birth to her, therefore a victim of statutory rape and herself a child in desperate need of protection. At 16, she bore a second child, still trapped in the cycle of her own youth and vulnerability. When she moved into Carlos Cafrine’s home, she was still a child. It is crucial to recognise that children cannot adequately care for other children; their immaturity renders them ill-equipped for the burdens of parenthood.

125. I cannot be deaf to the demonisation by the media of this child-mother. It is a poor reflection on our society that many chose to focus on the mother even when she was not on trial rather than recognise the monstrous acts of Carlos Cafrine. These conjurings and condemnation of Ms. Sophola were no doubt fuelled by the fact that much of the evidence, in this case, was given in-camera. The trial court must carefully consider when it is appropriate to order in-camera evidence balanced with the need to inform the public of proceedings. The media also has a responsibility to report accurately on evidence produced in court and to avoid encouraging harmful speculation, particularly when there are children involved. This may go a long way towards educating the public.

126. It is also impossible to overlook the stark reality that children in Seychelles are not effectively protected. This case blatantly reveals a grave lack of coordination and cohesive strategy among the various agencies responsible for child welfare. The Children Act has been enacted since 1982. It establishes a Commission for the Protection of Children and grants the Ministry of Social Affairs the authority to ensure the “proper care, accommodation, maintenance, welfare, and upbringing” ⁵¹ of our youth, but the system fails to act.

127. The mechanisms for judicial intervention and police assistance to remove children from abusive environments are in place, yet children continue to suffer and tragically lose their lives. In this case, the Department of Social Affairs knew that Angelique was being abused and neglected. Social workers knew of her injuries, that she was malnourished, and that there was no food in Angelique’s home when they did a home visit. Both sides of Angelique’s family were aware of her unexplained injuries. Mr Cafrine was under caution by the police for child neglect. The Ministry of Health was aware of multiple injuries suffered by Angelique in the months leading up to her death, although only Dr. Fanny took steps to protect her. She should have been removed from Mr. Cafrine’s house and never returned. The system failed her. Seychelles must confront this urgent issue and embrace its responsibilities to safeguard its most vulnerable citizens. The time for action is now.

Order

128. In the circumstances this Court makes the following orders: Carlos Cafrine’s appeal is dismissed.

1. His conviction is upheld, and therefore, the mandatory life sentence of imprisonment for murder is affirmed.

 

2. Mr. Camille is not to be paid any fees for this appeal.

 

3. A copy of this judgment is to be served on the Minister for Social Affairs for consequential actions arising from this judgment.

 

Signed, dated and delivered at Ile du Port on 18 December 2024.

 

_____________________________

Dr. M. Twomey-Woods, JA.

 

 

I concur ________________ A.T. Fernando President

 

ANDRE JA

1. I have read the Judgment of my learned colleague Dr. M. Twomey-Woods JA and I concur with the Orders to dismiss the appeal, uphold the conviction, and therefore, affirm the mandatory life sentence of imprisonment. In this regard I also endorse the decision that Mr. Camille is not to be paid any fees for this appeal.

 

2. It is worthy of mention, however, that even though no Seychellois case law provides a comprehensive guide on the summing up of evidence in a jury trial, the unique nature of Seychelles has to be used as a guide when interpreting foreign case law. In the case of Antat v Republic⁵² the court held that the form of summing up is not prescribed and must simply be fair.

3. It is important to note that Seychelles is a very small country and that in instances of the summing up of evidence, in order to not cause any undue influence to the jurors, situations will arise, as in this case, where jurors will be required to remain in court for the duration of the summing-up.

Jury Fatigue and the right to a fair trial

4. Section 267(4) of the Criminal Procedure Code prioritizes, whenever possible, the completion of jury deliberations and judgments be on the same day. Protecting jurors from improper influence and maintaining the integrity of their deliberations are the goals. Jurisdictions in more affluent, resource-rich countries, where it is both practical and common practice to sequester jurors in neutral lodgings like hotels or guest houses, stand in stark contrast to this idea. These developed economies can afford to take steps that protect jurors from outside pressures by removing the risks involved with them going back to their homes. This is however not the case in Seychelles, where the country is very small, and jurors could be influenced by returning home or leaving the court building at the stage of the summary of evidence.

 

5. Judges are encouraged to continue to follow the general norms in regards to the summing up of evidence and should give due consideration to the complexities in respect of a jury trial and maintaining a fair trial.

6. It is important to note that in the case of Jean-Charles & Anor v The Republic,⁵³ the discretion of the trial judge was emphasized by this Court citing Lord Adinger in R v⁵⁴ Farler, wherein he stated that:

“…an appellate court should be disinclined to interfere with the judge’s exercise of his discretion save in a case where the exercise of discretion has been wholly unreasonable.”⁵⁵

7. The ideal in these circumstances would be to sequester the jury at the summing up stage of the trial, this however is not provided for in law and is also subject to budgetary constraints. In the circumstances of this case, the trial judge used his discretion to continue with the summing up and as correctly pointed out by Dr. Twomey-Woods JA, that the trial judge's decisions regarding timing and deliberation were justified given the circumstances, and without evidence of coercion, the integrity of the verdict remains intact.

Judicial comment on the evidence in jury trials

8. The second argument raised by the Appellant is that the trial judge had expressed his personal views while summing up the evidence.

9. Section 265(2) of the Code clearly permits a trial judge to express his opinion on matters of fact. The qualifications are that this must be done with propriety and be relevant to the proceedings. The basis for this rule is the constitutional guarantee of fair trials.

10. In the cases of R v Nelson,⁵⁶ Uriah Brown v The Queen,⁵⁷ and Adrian Forrester v R,⁵⁸ the view is expressed that a trial judge is perfectly entitled to comment on the evidence and give his assessments on the difficulties or deficiencies apparent in the case as long as he reiterates that the jury are the final arbiters of fact and that they do not have to accept his views.

11. In the case of Marengo v R⁵⁹ the court held that:

“[18]It is trite that the trial judge in a jury trial has the responsibility for managing and presenting the facts. The judge has an obligation to assist the jury in their deliberations by providing an overview of the relevant evidence. This is distinct from the closing speeches made by the advocates. The judge has a duty to collate and set out the relevant evidence in a way that helps the jury make their determinations. This is to mitigate the possibility (most often the probability) of distortion by Counsel on each side. Even in extreme cases where there is much negative comment from the judge, appellate courts have refused to set aside the jury’s verdict. The case of Farooqi and Others [2014] 1 Cr App R 8 illustrates such circumstances. In that case, the summation highlighted the defence counsel's failure and incompetence, describing the counsel's submissions as "hopeless", yet the Court of Appeal held that Farooqi’s defence “was fairly before, but unsurprisingly rejected by the jury” (paragraph 121).”

 

12. Thus, there is Seychellois case law of this Court that provides a guide to the Supreme Court Judges in respect of summing up the evidence and assisting the jury in their deliberations while highlighting that ultimately, the jury are the final deciders of fact and that they do not have to accept the views of the judge.

 

 

Signed, dated and delivered at Ile du Port on 18 December 2024.

 

 

_____________________________

S. André, JA